Franklin v. Arguello

United States District Court, D. Nevada

February 17, 2017

DARIN J. FRANKLIN, Plaintiff,v.TANIA ARGUELLO et al., Defendants.

ORDER

ROBERT
C. JONES, UNITED STATES DISTRICT JUDGE

This is
a prisoner civil rights action under 42 U.S.C. § 1983.
Now pending before the Court is Plaintiff's Motion for
Reconsideration. (ECF No. 41.) For the reasons given herein,
the Court denies the motion.

I.
FACTS AND PROCEDURAL BACKGROUND

Plaintiff's
original Complaint was screened under 28 U.S.C. § 1915A.
(See First Screening Order, ECF No. 9.) In its
screening order, the Court dismissed certain claims with
prejudice, dismissed certain other claims with leave to
amend, and dismissed several defendants from the
action.[1] Plaintiff subsequently amended his
Complaint. (First Am. Compl., ECF No. 22.) The Court screened
the First Amended Complaint (“FAC”) and permitted
all five of its claims to proceed as amended, but dismissed
all named defendants with the exceptions of Eugene Murguia,
Michael Koehn, and Renee Baker. The Court expressly found
that Counts I and II of the FAC were sufficiently pleaded
only against Murguia; Count III of the FAC was sufficiently
pleaded only against Koehn; and Counts IV and V of the FAC
were sufficiently pleaded only against Baker. (See
Second Screening Order, ECF No. 21.)

In its
initial screening order, the Court dismissed, without leave
to amend, a portion of Count IV of the original Complaint,
namely, Plaintiff's Eighth Amendment claim arising from
Dr. Michael Koehn's refusal to prescribe proton pump
inhibitors (“PPIs”) or H2 blockers as treatment
for Plaintiff's gastro-esophageal reflux disease
(“GERD”). (See First Screening Order
7-8, ECF No. 9.) Plaintiff had been taking PPIs or H2
blockers (e.g., Prevacid) for about eight years when he
decided to stop in mid-2012, based on the medical advice of a
Dr. Mar at Warm Springs Correctional Center concerning the
potential harmful side-effects of long-term use. From that
time on, Plaintiff limited medication for his GERD to
high-dose calcium antacids. About a year and a half later,
Plaintiff began experiencing an increase in symptoms,
including severe pain, and asked Dr. Michael Koehn at Ely
State Prison to resume Plaintiff's prescription for PPIs
or H2 blockers. Koehn refused, and rather kept prescribing
antacids. Koehn continued to refuse to prescribe Plaintiff
the medication he requested for a period of roughly seven
months. In its first screening order, the Court narrowly
dismissed Plaintiff's claim to the extent it was based on
Koehn's refusal to prescribe PPIs or H2 blockers, but
allowed the claim to proceed with respect to certain periods
of time during which Koehn did not prescribe any medication
for Plaintiff's GERD. (See Id. at 9-10.)

Plaintiff
now asks the Court to reconsider its prior order dismissing
with prejudice his Eighth Amendment claim arising from
Koehn's refusal to prescribe PPIs or H2 blockers.

However,
a motion to reconsider “may not be used to raise
arguments or present evidence for the first time when they
could reasonably have been raised earlier in the
litigation.” Carroll, 342 F.3d at 945; see
also United States v. Lopez-Cruz, 730 F.3d 803, 811-12
(9th Cir. 2013). Nor is reconsideration to be used to ask the
court to rethink what it has already thought. See Walker
v. Giurbino, 2008 WL 1767040, *2 (E.D. Cal. 2008);
United States v. Rezzonico, 32 F.Supp.2d 1112, 1116
(D. Ariz. 1998). “A motion to reconsider is not a
second chance for the losing party to make its strongest case
or to dress up arguments that previously failed.”
United States v. Huff, 782 F.3d 1221, 1224 (10th
Cir.), cert. denied, 136 S.Ct. 537 (2015).

Motions
to reconsider are committed to the discretion of the trial
court. See Combs v. Nick Garin Trucking, 825 F.2d
437, 441 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d
456, 460 (9th Cir. 1983) (en banc). To succeed, a party must
set forth facts or law of a strongly convincing nature to
induce the court to reverse its prior decision. See,
e.g., Kern-Tulare Water Dist. v. City of
Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986),
aff'd in part and rev'd in part on other
grounds, 828 F.2d 514 (9th Cir. 1987).

III.
ANALYSIS

Plaintiff
has failed to present any newly discovered evidence, to
demonstrate how the Court's prior dismissal upon
screening was clear error or manifestly unjust, or to show
that there has been an intervening change in controlling law.
Therefore, Plaintiff has failed to satisfy his burden on a
motion to reconsider, and on this basis alone Plaintiff's
motion must be denied.

Plaintiff
argues that the Court erred in denying leave to amend Count
IV of the original Complaint. In its initial screening order,
the Court found that Dr. Koehn's refusal to prescribe
PPIs or H2 blockers for Plaintiff's GERD
“represent[ed] a disagreement in the method of
treatment that cannot be said to constitute a total lack of
treatment amounting to deliberate indifference in the
constitutional sense.” (Screening Order 10, ECF No. 9.)
Therefore, the Court dismissed this portion of Count IV
without leave to amend.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Here,
Plaintiff has failed to demonstrate that the Court&#39;s
prior conclusions were wrong, and failed to show that the
deficiencies in Count IV of the original Complaint could be
cured by amendment. During the period of time that Plaintiff
was requesting PPIs or H2 blockers but Dr. Koehn was
alternatively prescribing antacids, Koehn was providing
treatment to Plaintiff, albeit in a manner Plaintiff did not
agree with. Moreover, Plaintiff&#39;s pleadings indicate that
Koehn&#39;s prescription of antacids was a continuation of
the treatment plan recommended by Plaintiff&#39;s prior
physician, Dr. Mar. Therefore, Plaintiff has not alleged
facts to support any inference that Koehn&#39;s refusal
specifically to prescribe PPIs or H2 blockers was in
conscious disregard of Plaintiff&#39;s medical needs. Indeed,
Koehn was prescribing medication for Plaintiff&#39;s
condition- medication also prescribed by Plaintiff&#39;s
prior physician. A dispute over the right approach to
treatment may sound in medical malpractice, but does not,
without more, rise to the level of deliberate indifference.
See Estelle v. Gamble, 429 U.S. 97, 106 (1976)
...

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